February 17, 2006

Maher Arar's Case Dismissed

by hilzoy

Maher Arar's case has been dismissed. You can read Katherine's summary of the case here, a press release from Arar's attorneys here, and the decision itself here (pdf).

I've read the decision, but do not feel competent to address the legal issues it raises. (Most of them involve things like jurisdiction and standing.) However, there is one point on which I disagree strongly with the Court. Apparently, one of the counts could have proceeded had the Court not found that the national security questions it raises require that it be deferred to Congress or the executive. The courts, according to the decision, lack the foreign policy expertise to decide such questions, and therefore they should be left to the "political branches" of the government.

I think this is just wrong. Article VI of the Constitution states that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby". We have entered into the Convention Against Torture. Article III of that Convention states that "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." There are very substantial grounds for believing that someone rendered to Syria, as Arar was, would be tortured, even leaving aside the possibility that we asked the Syrians to torture him. We have therefore violated one of those treaties which are, according to the Constitution, the law of the land.

This means that the extradition of Maher Arar is a violation of the law. It may also have foreign policy implications, but it does not thereby cease to be a violation of the law. And while conducting foreign policy may not fall within normal judicial expertise, reading laws, and determining whether the facts in evidence warrant conviction under them, is exactly what judges do. If determining when conduct violates a law and when it does not does not fall within their purview, I have no idea why on earth we bother to have them.

Moreover, while the Court argues that Congress has not addressed the issue of extraordinary rendition, I would have thought that it did so by ratifying the Convention Against Torture, thereby making it the law of the land.

The only way I can see of holding that Maher Arar's detention should not be justiciable is to say that when something is both (a) a violation of law and (b) significant for foreign policy, its foreign policy significance should trump its illegality. But this would be crazy. Do we really want to say that whenever foreign policy is in any way involved, our laws cease to apply? That whatever our officials do that relates to foreign policy is therefore immune to legal scrutiny? I don't.

The Court also makes much of various prudential arguments against the courts' considering issues that bear on foreign policy. But there are, I think, compelling prudential arguments on the other side as well. For one thing, treaties are not just vague gestures in the general direction of an intention; they are legally binding documents, and should be treated as such. When a treaty specifically outlaws certain forms of conduct, and our government engages in them anyways, our word as a nation is at stake. It would be nice to think that no administration would ever choose to ignore treaties, but Maher Arar's case is itself evidence that sometimes they do.

If there is no way of holding officials accountable under treaties (which almost by definition involve "foreign policy considerations"), then nothing prevents administrations from treating treaties as worthless scraps of paper. There are, it seems to me, very strong prudential arguments against allowing this to happen. And the courts would not be intruding where they do not belong: as I've said, according to the Constitution, treaties are law, and so in adopting a treaty, the Congress is making the conduct they preclude the courts' business.

That someone on a stopover in an airport can be detained by our government, sent to Syria to be tortured, held for ten months, and be left without any legal recourse is unconscionable. Coming just after the Abu Ghraib photos, it leaves me speechless.

Comments

If Arar doesn't succeed in getting his case heard, isn't it a prime example of what the International Criminal Court intended for -- to try crimes against humanity that can't be tried in the country where they were committed?

Of course, there's the little detail that we haven't joined the ICC (and are withholding military aid and co-operation from countries that won't sign away their right to take to the court crimes committed by U.S. citizens).

Well, the U.S. ratified the Convention Against Torture with the understanding that it wasn't self executing--that Congress needed to pass statutes to make it enforceable in US courts. And the statute on Article III, the part about rendition, does not provide for a cause of action. I'm not actually sure how much choice the judge had there. I expected the CAT claims to get thrown out.

The section on how this suit would just be too harmful to our relationship with Canada actually concerns whether he can sue under the due process clause of the Fifth Amendment. This wouldn't be available for most rendition victims, but Arar was stopped in JFK and detained for a couple weeks in Brooklyn.

It still seems unfair to only consider one set of prudential considerations: we're not allowed to consider whether it's good policy to allow the U.S. government to ship innocent Canadians off to Syria to be torture--but we must consider very seriously that possibility that we or Canada or Syria might find it embarrassing for these facts to be revealed in Court?

There are some remedies I think the courts have to stay away from granting for foreign policy reasons, but "allowing civil lawsuits even though the government and allies might find them embarrassing " is not one of them.

"that Congress needed to pass statutes to make it enforceable in US courts"

That Congress failed in its duty means the Government can rendition to torture states?
(Horribly phrased, is rend a verb here?) I have been trying to get my mind around treaties that are ratified yet without force;and trying to come up with other examples, say in the economic sphere. I am sure it is completely common:"We respect each other's intellectual property. Period. Sign here and have a press conference."

If I am not mistaken, much of the 60s Civil rights legislation was about giving force to existing laws by providing fora and remedies.
It was illegal to deny blacks the right to vote, but until the 60s there was nothing to be done about it. This should put Sovereign Immunity cases into perspective?

And I suspect much of the "activist" jurisprudence is connected to attempts to provide remedies where none exist in statute. School Busing being an example.

If I am understanding this correctly, and reading things implied in Katherine's remarks, a judiciary that creates standing and remedies from thin air is profoundly disturbing to even her, in even this case and circumstances.

To a Cella or Holsclaw it is a unspeakable nightmare, a violation of principles of law akin to apples floating back up into the tree.

I'm not too surprised by this dismissal. Note, however, that the Court granted Arar leave to replead Count 4. Assuming Arar can allege personal involvement by and jurisdiction over the involved individuals, he may have a claim to make.

On September 25, 2004, the results of an internal RCMP investigation by RCMP Chief Superintendent Brian Garvie were published. Though the version released to the public was censored, the Garvie report documented several instances of impropriety by the RCMP in the Arar case. Among its revelations were that the RCMP was responsible for giving American authorities sensitive information on Arar with no attached provisos about how this information might be used.. Also, Richard Roy, the RCMP liaison officer with the Department of Foreign Affairs, may have known of the plan of deporting Arar to Syria but did not contact his supervisors. Additionally, Deputy RCMP Commissioner Garry Loeppky lobbied hard, in the spring of 2003, to convince his government not to claim in a letter to Syria, that it "had no evidence Arar was involved in any terrorist activities" because Arar "remained a person of great interest".

In response to the Garvie report, Arar said that the report was "just the starting point to find out the truth about what happened to me" and that it "exposes the fact that the government was misleading the public when they said Canada had nothing to do with sending me to Syria."

The Arar Commission having now officially accepted Arar's claims of torture as fact, they are considered a res judicata and need not be referred to as allegations.

IIRC a student note was written and published in the Calif. L. Rev. circa 2001-2003 that argued that once the U.S. signed a treaty, self-executing or not, that state courts nevertheless were required to enforce it, even if federal courts did not due to the non-self-executing determination. Don't recall how persuasive it was, but perhaps Arar should sue in state court in NY?

Nearly a decade after the United States ratified the International Covenant on Civil and Political Rights, the treaty’s implementation is incomplete. A complex maze of reservations, understandings, and declarations has hindered domestic implementation, as has Congress’s failure to pass national implementing legislation. Almost every state in the Union has laws that violate the Covenant. For example, the treaty requires that in criminal matters, juveniles must be tried in a manner that takes account of their age. Nevertheless, California and many other states frequently treat minors as adults in such matters. Because the Senate declared the treaty to be non-self-executing, the question arises whether there is any legal remedy for state breaches of this U.S. treaty obligation. The Supremacy Clause exclusively regulates the relationship between treaties and states. Nothing in the Supremacy Clause requires congressional implementation of a treaty in order for that treaty to supersede state law. Congress’s failure to implement the treaty merely displaces the primary burden of enforcement to the states. The Senate’s declaration that the Covenant shall not be self-executing in no way diminishes state courts’ duty to enforce the treaty. Though the declaration may limit the federal courts’ ability to recognize private rights of action based on the treaty, federal courts have demonstrated an increasing willingness to entertain claims to treaty rights asserted against the government. Both state and federal courts have the power to bring wayward state laws into compliance with the Covenant’s obligation.

otmar, though for many years I've loved visiting the US and travelling there, I finally decided I couldn't do it any more when a friend who works for British Airways told me that every single Muslim he knows who works for BA has asked to be taken off the transatlantic flights, due to the harassment and bullying they have experienced on arrival in the US.

This is airline staff, please note, not passengers: one man was separated out from the rest of the crew, after an 11 hour flight (a British citizen, albeit his parents were born in Pakistan, and a British Airways employee) and taken from the airport directly to the local sheriff's office, apparently solely and simply because he had a "Muslim" name. The local sheriff interviewed him, apparently assuming he had been brought to the sheriff's office as an illegal immigrant, and on discovering he was BA crew, let him go to the hotel where the rest of the crew were taking their well-earned rest. Nor is his story unique.

My decision not to return to the US again, since it appeared I escaped this kind of harassment purely because of my name/race/religion, was more an aesthetic than a fearful one: I chose not to travel to a country where I was exempted from harassment by reason of my race.

But the series of legal decisions supporting this principle that non-US citizens may be kidnapped by US authorities and sent to be tortured either in Guantanamo Bay or anywhere else in the world with a dungeon, means that non-US citizens not in extreme need should not go to the US: we cannot consider ourselves safe there until the US changes its laws again.

Jes: more than I can say, I wish you weren't right. Luckily, I can still come to your country without fear, as long as I refrain from glorifying terrorism. (The first unintended consequence of this law that leapt to my mind was historians writing favorably about people in antiquity who adopted measures that you'd have to call terrorist: violence directed at civilians whose aim is to break the will of the populace.) Historians of the nastier bits of the Roman empire, not to mention e.g. the Mongols, should beware.

"If the courts will not stop this evil act, who is going to stop this administration?

"Where do we go? The United Nations? We — me and others who have been subjected to this — are normal citizens who have done no wrong.

"They have destroyed my life. They have destroyed other lives. But the court system does not listen to us.

"The court system is what distinguishes the West from the Third World. When a court will not act because of `national security,' there is no longer any difference between the West and the Third World."

Additionally, this regularly updated CBC backgrounder on Arar contains a number of articles that show how the Canadian government handled the controversy as events unfolded, along with extensive coverage of the ongoing public inquiry.

Well, they do have to follow the law. And there's a long history of deferring on a great many issues regarding foreign policy. Whether that's appropriately applicable or not in this case, I don't remotely begin to have sufficient knowledge in U.S. case law to say, but I'm inclined to guess that neither do you. Personal courage of the judges is entirely besides the point, I suggest.

"All my reading confirms that as a non-citizen you simply have no right at all on US soil."

That's incorrect. Whether you feel you have sufficient rights is another matter, and I'd certainly agree that you have good grounds for concern and for, at the very least, wishing to find out the details, should you have sufficient desire. But there have been a considerable number of gross and horrible abuses by immigration and customs and other authories, at the ground level, in the last three years, which is why I agree you have sound grounds for considerable concern.

Hilzoy: "Luckily, I can still come to your country without fear, as long as I refrain from glorifying terrorism."

And you won't even be required to obtain a mandatory ID card, although you won't be let in without the one known as a "passport," of course.

And should you either rent a car, or ride in anyone's car, in Britain, you can enjoy being under non-stop police surveillance, while, a bit down the road, facial recognition can be run on you.

And if someone at a police station decides you look suspicious (not to mention that when the system is fully implemented, tens of thousands of people will have access to it; it's not remotely possible that any of them will privately abuse such access, of course, do don't worry about that, either), maybe you can be shot in the head while riding mass transit, and held down as you struggle, and the authorities can then claim for some days that you were suspicious in your heavy coat (that you weren't wearing) and that you were a suspected terrorist (which you weren't).

Which is by way of saying that few countries don't have a lot of glass, which also doesn't mean that any of our countries gets let off from having some of said glass noted. Just saying in general, not directing this at you, of course, Hilzoy. Just saying in general. I don't think anyone is "safe" in some perfect way in any country. Not even close.

I disagree with Katherine here. Re-reading the section on why the court felt it couldn't, for national security concerns, address Arar's claims, I'm struck by the dearth of on-point controlling precedent. Chaser Shipping didn't involve an intentional violation of fundamental rights, for example, but was a negligence case. Jama was simple statutory construction, and the quoted excerpt wasn't about hesitation to enforce the law as written, but to re-write the law as petitioner wanted.

Maybe I'm not actually disagreeing with Katherine. I don't think at all that this result was compelled by the law, though, and I think the chances of reversal aren't bad. The question is whether they can make a better record with a repled action, or should go up now on the current record.

You're not disagreeing with me. The "ooh, but we might embarrass Canada, so there can't be a cause of action" section seemed really weak. The thing about the constitutional claims is, I think they're only available in this case because he was stopped at JFK--most renditions are entirely overseas.

Yeah, I agree that it's a problem of the lack of extraterritorial application of the Constitution. Which is, I think, a fundamental mistake of interpretation: I don't think our government is empowered to enslave people just because they are abroad, or summarily execute them, or take their belongings without compensation.

This is a rant I give out at intervals, and will spare everyone the rest at this point.

No they don't. No one ever has to follow the law, and I can't even concieve of saying such a thing. Although I might have in reference to the Bush administration, I would vastly prefer that they have the choice, and the rest of us are able to determine and effect consequences and retribution.

The internalization of authority to the extent that civil disobedience or other acts of conscience become impossible excludes the founding fathers, Harriet Tubman, the French under the Vichy, Ghandi, MLK. Many of whom were under oaths, implied or overt.

You do not have to follow the law. To what extent you do follow the law is a matter of conscience and pragmatic considerations of necessity and consequence and effect. Whether or not this judge at this time would have been in any way more effective by extra-legal protest is open to discussion, but I do not listen to people who after this judge sees, say his 6th millionth Maher Arar, must throw up his hands and simply say "The Law is the Law."

Then there's Sale v. Haitian Centers Council--the 8-1 Supreme Court decision saying the REFUGEE convention doesn't apply overseas, and would've allowed us to stop boats of Jewish refugees, and deliver them back to Nazi Germany. (it came up in the context of Haitians, but that's what the outcome implies.)

Me too. In connection with the NSA scandal, I am constantly encountering even the most liberal of liberals saying:"Well, of course the gov't can wiretap overseas indiscriminately and without oversight." and I would like just a little concrete argument as to why we can't set up hidden cameras in Jude Law's bedroom.

At risk of having you say unpleasant things about me, which I'd like to hope you won't do, Bob, may I ask if you see any possible contradictions here that you'd like to clarify that you don't intend (I ask "may," rather than "can," for what should be obvious reasons)?

"No they don't. No one ever has to follow the law, and I can't even concieve of saying such a thing."

And: "I am constantly encountering even the most liberal of liberals saying:'Well, of course the gov't can wiretap overseas indiscriminately and without oversight.' and I would like just a little concrete argument as to why we can't set up hidden cameras in Jude Law's bedroom."

Myself, I'd suggest that there are several different sorts of "can." Among others, there is the physical capability, the legal definition, the legally enforceable, and the moral choice, all of which might be phrased as what one "can" or "can't" do. You don't seem to be clearly differentiating which forms of "can" you are using here, from one comment to the next, or in what these unnamed liberals are using "can" to mean in different contexts, though perhaps that's just my own lack of perceptiveness at work.

Look, charley and Katherine are officers of the court or have other considerations, and may not or shouldn't say some of the crazy and irresponsible stuff I do. Beside perhaps vehemently disagreeing in principle and detail, what do I know.

And I don't know Traeger and this court and some options might simply be off the table.

But a headline in the Times, and I think it would have been the headline, "Judge Awards Arar One Billion Dollars in Rendition Case" might have been quite useful at this time.

"Myself, I'd suggest that there are several different sorts of "can.""

Umm, Gary I am not engaged in a linguistic or semantic argument here.

I actually hesitated over that particular word, but "shouldn't" did not seem adequate to my purpose.

I won't trouble to cite, because the assertion has been made in many places, that:"No one is arguing that the the gov't can't tap conversations overseas." Being who I am, I of course, several times have said "Wait a minute", and attempted to extend the Bill of Rights to non-citizens and non-residents, at least in principle. The Geneva and Hague Convention etc provide some opportunities for argument, and there are practical considerations of the British getting very angry about those cameras in Jude's bedroom.

But against people who would say:"No one would argue..." I would some sharper arrows in my quiver than:"It would be wrong."

hilzoy, if anything you have understated the matter. The other jurisdiction/standing issues didn't really matter, because the judge found in favor of Arar on them. The crux of the decision was the point you identified -- the "political question" issue -- the only one on which the judge ruled against Arar's constitutional claims as to rendition.

And the judge made a pretty durn lame call, IMHO. I don't think the judge was biased - if anything, he seems rather upset at the Government's alleged conduct, and sympathetic towards visitors in general if not Aras himself. But however honest, fair, and intelligent he is, I think he made the wrong call this time.

The judge's argument boils down to, if the U.S. really IS doing horrible things to our people in cooperation with Syria, who am I to interfere? The answer being, he's a federal judge, one of the few people empowered to interfere. That gives him a heavy responsibility, which he should not duck just because he cannot predict all the repercussions -- as he cannot in any case he hears, really. He suggests that this question is better handled by Congress, but it's difficult to see why. Yes, doing justice might offend Syria or Canada, might even scare off other countries from cooperating with the U.S. in denying visitors rights. I tend to view this as a feature, not a bug.

Basically, the judge held that anything that might impact the international side of antiterrorism efforts is out of bounds for domestic courts. There is a fine line between judicial modesty and self-emasculation, and I think this judge crossed it.